Loreto Normanhurst Association Inc v Hornsby Shire Council

Land and Environment Court (NSW)|2001-11-01|Before: Bignold J

The Applicant contends that these documents are not admissible, except for the plan forming part of the 1997 development application because that plan is expressly incorporated by reference in the 1997 Notice.

In so submitting, the Applicant relies upon a consistent line of judicial authority originating with the decision of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes (1970) 19LGERA 321 and most recently expressed by the Court of Appeal in Winn v Director General of National Parks and Wildlife (2001) NSWCA 17 for the proposition that "documents accompanying an application for consent are not taken as incorporated in the consent unless incorporated expressly or by necessary implication": per Spigelman CJ in Winn at par 2.

A separate argument advanced by the Respondent is that it is necessary to examine the development applications in order to give effect to the EP&A Act, s 91(4) which provided as follows: (4) A consent to a development application for the carrying out of development, being the erection of a building, shall be sufficient to authorise the use of the building when erected for the purpose for which it was erected where that purpose is specified in the development application.

Relevantly, for the purposes of s 91(4) the 1980 and the 1994 Regulations contained provision in the prescribed form for development applications for the applicant to state, in the case of a development involving the erection of a building, "the proposed use of that building when erected".

In my judgment, the Respondent's submissions as to the admissibility of the documents comprising the respective development applications which yielded the 1982 and 1997 development consents are correct inasmuch as each of the Notices given pursuant to the EP&A Act, s 92(1) incorporate by express reference the development application made in each case.

This view is supported by the judgment of Sheller JA (with whom Beazley JA agreed) in Woolworths Ltd v Campbells Cash and Carry (1996) 92LGERA 244. That case, in my judgment, provides a particularly illuminating analysis of the Notice given pursuant to the EP&A Act, s 92(1) in respect of a development consent granted by the council in 1987. The case is also instructive inasmuch as it reveals an entirely different interpretation of the relevant consent concerning the description of the approved development found in the judgment of Cole JA, notwithstanding the fact that in arriving at the competing interpretations of the relevant s 92 Notice, both the majority and minority judgments cite and purport to apply the same authorities.

In that case, the development application had described the development for which consent was sought as follows: The sale and distribution of groceries, liquor and general merchandise by way of wholesale and to affiliates of groups, clubs, unions or other associations formed with a common interest (see at 249)

The Notice given pursuant to the EP&A Act, s 92(1) in respect of that development consent had stated that "the development application had been determined by granting of consent specified in the Notice. PROPOSAL: Alterations to and use of existing premises for the purposes of a grocery warehouse (being the storage of goods, merchandise or materials pending their sale and distribution to persons engaged in the retail trade). (see at 251 ).

The majority judgment held that the development to which the development consent was granted was that which was described in the development application "except to the extent that they were modified by other conditions such as condition 11": see at 249.

The minority judgment held that the relevant development was that which was limited by the words describing "The Proposal" contained in the s 92(1) Notice.

Sheller JA formulated the relevant principles in the following passage at 249: Development approvals operate for the benefit of subsequent owners and other occupiers of land and denote the consent authority's unilateral act, not a bilateral agreement between the parties. Generally, if the terms of the approval are clear, it is not permissible to look to the application or to other documents which accompany the application to qualify or contradict its terms. But if the approval incorporates the application, the two must be read together; see generally P arramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; 1972) 27 LGRA 102; Stebbins v Lismore City Council (1988) 64 LGRA 132 and Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1994) 51 FCR 213; 85 LGERA 37 where, beginning at 219; 43, Wilcox J has reviewed the cases.

Although the competing judgments in Woolworths can be explained by the different interpretations adopted of the relevant language of the s 92(1) Notice, I would respectfully suggest that the interpretation found in the majority judgment could also have been arrived at more directly by simply concluding that it was "the development application that had been granted consent subject to conditions" which conclusion reflects and adopts the language of the prescribed Form 7 and the statutory language of the EP&A Act, ss 91 and 92 (as in force when the consent in Woolworths was granted). Section 91(1) relevantly provided: A development application shall be determined by: (a) the granting of consent to that application, either unconditionally or subject to conditions or (b) the refusing of consent to that application

The importance and function of s 91 was demonstrated in the judgment of the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 espc at 736/737 per Priestley JA.

The simple and direct approach that I have suggested of linking the determination granting development consent to "the development application" seeking that consent is supported by the earlier decision of the Court of Appeal in Stebbins v Lismore City Council (1988) 64LGRA 132. In assuming the correctness of the appellant's argument in that case that the s 92(1) Notice of the development consent "itself constituted the development consent" and must be taken as approving "the development application in its entirety" the Court went on to say at 135/136 in respect of an endorsement placed by the Council upon the development plan which had accompanied the development application: However, the argument of the appellants fails to give the endorsement on the plan any significance at all. It treated the endorsement as non-existent. We do not agree with this approach. The notice of determination of the development application should, we think be read together with the plan. The written form of application is meaningless unless the plans accompanying it are considered as part of the application. Similarly when the notice of consent refers to the determination of the development application it must be referring to the application including the plans without which that application would not be an application at all . The consent as granted was to an application incorporating a plan on which, at the time of consent, a marking had been placed showing that the development being approved did not include the new entrance. Read together the documents returned to the appellants informed them that the works shown on the plan were the subject of the development consent except insofar as an amendment was required in relation to the new entrance to the Bruxner Highway. The consent could not, in view of the stamp, be regarded as allowing for development in that area in the precise terms shown by the plan. (emphasis added)

In my judgment, the very comprehensive and detailed statutory regime contained in the EP&A Act and Regulation for the making of a development application and for the determination of that application and for the notification of the determination and for the public availability of the register of development consents necessarily means when that statutory regime is implemented that the development application (and its supporting materials that constitute the due "form" of the application and the due "manner" in which the application is made) is incorporated by express reference in the s 92(1) Notice and that it provides the full and proper description of the approved development (while recognising the legitimacy of details of the development so described, being modified by the imposition of conditions on the grant of development consent, as was held to have occurred in Woolworths).

The relevant provisions of the EP&A Act and Regulation that I have cited are of course those that applied at the respective dates when the 1982 and 1997 development consents were respectively granted. They continue to constitute the detailed and comprehensive statutory regime under the EP&A Act and Regulation as currently in force.

Importantly, the statutory regime has been in place since the original commencement of the EP&A Act on 1 September 1980 and it has continued since then albeit expressed in the current form of the relevant provisions. The significance of the detailed and comprehensive regime has not generally been observed in the decided cases, which generally have sustained principles that were established in cases pre-dating the enactment of the EP&A Act when the relevant town and country planning legislation lacked any real counterpart (even embryonically) to the comprehensive statutory regime governing development applications and development consents that was provided by the EP&A Act from the time of its commencement in 1980. The decisions of the Court of Appeal in Stebbins and in Woolworths that I have earlier noted, come closest of all the cases to a consideration of the statutory regime, and they support the approach that I have taken of regarding the development applications to be incorporated by express reference into the s 92(1) Notices and to fully and properly describe the development that each of the 1982 and 1997 development consents approved.

Having regard to the statutory regime in force at the time that the s 92(1) Notices were issued in respect of both the 1982 and 1997 development consents and to the fact that each Notice incorporates by express reference the development application made in each case, it is legitimate, in my judgment, to have regard to the terms of the development application in construing the development consent, the subject of the s 92(1) Notices, in order to properly appreciate the nature and description of the developments that were approved, particularly bearing in mind that the full and accurate description of the proposed development is the centre piece of the prescribed form for development applications.

When regard is had to the development application which is incorporated by express reference in the s 92(1) Notice given in respect of the 1982 development consent, it is apparent that the proposed gymnasium development was intended for use by the School.

This is attested by the following extract from the development application: 8. Description of development or other activity (eg. Advertisement, demolition etc.) for which development consent is sought: __________________________________________ __________________________________________ __________________________________________ Where development involves the erection of a building, the proposed use of that building when erected: GYMNASIUM, - CHANGE ROOMS CANTEEN - FOR SCHOOL USE

In the case of the development application incorporated by express reference in the s 92(1) Notice given in respect of the 1997 development consent, the prescribed form component of the application was not available at the trial. However, it was later discovered, and by consent, I granted leave to the parties to re-open the case for the purpose of tendering the application form. It contains the following description of the proposed development: Description of development or other activity for which development consent is sought - NEW SWIMMING POOL COMPLEX & ADDITIONS TO EXISTING GYMNASIUM If a building, its proposed use INDOOR POOL, FITNESS TRAINING, TEACHING SPACE

However, the Respondent particularly relies upon the contents of the "Statement of Environmental Effects" which accompanied the development application, as was required by the prescribed form Note 7 of which (reflecting s 77(3)(c) of the EP&A Act) states: Where a proposed development is not designated development, the application must be accompanied by a statement of environmental effects unless the proposed development is considered to have negligible effect (eg minor interior alterations) which must a) demonstrate that the environmental impact of the development has been considered b) set out steps to be taken to protect the environment or to mitigate the harm.

The Respondent submits that the Statement of Environmental Effects forms part of the Development Application incorporated by express reference in the s 92(1) Notice. This submission in my judgment has the support of the decision of the Court of Appeal in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111LGERA 446 where the Court held that a development application in the prescribed form which is not made in the prescribed manner (eg by not being accompanied by a required environmental impact statement or statement of environmental effects) is not made in the prescribed manner within the meaning of the EP&A Act, s 77(3)(b) which relevantly provided: A development application shall: (b) be made in the prescribed form and manner.

In my judgment, the statement of environmental effects that was required by the prescribed form for a development application (vide cl 45 of the 1994 Regulation) to accompany the development application was relevantly part of the development application which was incorporated by express reference in the s 92(1) Notice given in respect of the 1997 development consent.

The Statement of Environmental Effects include the following statements: INTRODUCTION Loreto Normanhurst, a private Catholic secondary girls' school, occupies 12.85 hectares of land (9.43 ha being zoned Special Uses A) bounded by Pennant Hills Road, Mount Pleasant Avenue and Osborn Road, Normanhurst. The campus consists of existing buildings erected over a period of 100 years which reflect the growth of educational needs over this period. The proposed new Indoor Swimming Pool Complex and alterations and additions to the existing Gymnasium are a response to the need to further improve the facilities provided by the school to ensure the all round development of its students. The 25 metre pool (2.05m deep) will allow for short course swimming and waterpolo, whilst the learners' pool will enable students not yet able to swim to be given swimming lessons in a shallower pool (1.05m deep). ................. ................. OPERATION It is proposed that the new Swimming Pool Complex and Gymnasium alterations and additions will be used during normal school hours. The Learners' Pool facility will be for use by students (particularly Year 7) requiring learn-to-swim lessons. This will include use by boarders, staff and members of the Loreto Normanhurst community after hours and on weekends. ................ ................. CONCLUSION The proposed upgrading of the school facilities to provide a more complete physical fitness education will be of great benefit to its students. The siting and design of the new Swimming Pool Complex and Gymnasium additions will provide these facilities without having any detrimental effect upon the heritage and environmental features of the site. Neighbouring properties will not be detrimentally affected by usage noise, increased traffic noise, loss of privacy or loss of views from this proposal. The proposed development will not impact on the current amenity of the neighbourhood. These facilities are designed to serve the existing school population and be exclusively for their use. Loreto Normanhurst aims to provide the best all round education for its students. Provision of these new facilities are important in order to achieve the goals of a complete curriculum.

It is common ground that when the 1982 development consent was granted, the school property was wholly included in the Special Uses A Zone under the Hornsby Planning Scheme Ordinance (1977) which was the then governing planning instrument. In that zone, the only permissible purposes of development were the following purposes (with all other purposes being prohibited): The particular purpose indicated by scarlet lettering on the Scheme Map (namely Convent ), Any purpose ordinarily incidental or subsidiary to that indicated purpose, open space; utility installations other than gas holders or general works.

It is accepted that the relevant purpose was "Convent" (which has been taken to include the school which has replaced the convent) and any purpose ordinarily incidental or subsidiary to the purpose of "Convent".

It is also common ground that at the time the 1997 development consent was granted, most of the school property was zoned Special Uses "A" (Community Purposes) under the Hornsby Local Environmental Plan 1994 (the LEP) which had replaced the Hornsby Planning Scheme but a small section, including part of the site of the approved swimming pool etc was included in Zone No 2A "Residential "A" in both of which Zones the permissible purposes of development included: community facilities, educational establishments, recreation areas, recreation facilities.

Each of these purposes is defined in the LEP vide cl 23 but there is no need in this judgment to recite these definitions. C. WHAT ARE THE DEVELOPMENTS THAT WERE APPROVED BY THE 1982 AND 1997 DEVELOPMENT CONSENTS?

In my judgment, this question goes to the heart of the dispute between the parties. I would hold that the approved developments were respectively -

(i) the erection and use of gymnasium for school use (the 1982 development consent); and (ii) the erection and use of the swimming pool for school use (the 1997 development consent).

In so concluding, I have, for the reasons given obviously had regard to the contents of each of the development applications that are incorporated by express reference in the s 92(1) Notices given in respect of the 1982 and 1997 development consents in order to ascertain the true nature and description of the developments that were respectively approved by those development consents.

The true nature of the approved developments is not simply "the erection of a gymnasium" and "the erection of a swimming pool" as expressed in the s 92(1) Notices upon which the Applicant's argument is founded. Rather, the true nature of the approved developments is the development of those buildings as school facilities for use by the school, as is attested by the relevant content of the relevant development applications.

It is to be noted that I have held the approved developments to include the "use" of the approved gymnasium and swimming pool, even though in terms, the development consents simply refer to "the erection of the gymnasium" and "the erection of the swimming pool' respectively.

My conclusion that the approved developments do include "the use of" the approved developments derives entirely from the operation of the EP&A Act, s 91(4) as in force when each of the 1982 and 1997 development consents were granted.

Section 91(4) operates in the case of each of the consents because each of the relevant development applications specified the purpose for which each building was erected, conformably to the requirements of the relevant prescribed form for development applications, and hence "use" for that specified purpose was authorised by force of the EP&A Act, s 91(4).

However, in order to invoke the authorisation granted by s 91(4), it is of course necessary to refer to the development applications to be satisfied that the purpose for which the building was erected "is specified in the development application".

Accordingly, for the purpose of obtaining the benefit of the authorisation provided by s 91(4), it is necessary for the Applicant to refer to the relevant development applications. This provides an independent justification for referring to the relevant development applications in the present case.

It follows from the foregoing that the Applicant has not made good its case for the declarations sought. Accordingly, I must reject the Applicant's principal argument "that the development consents properly construed place no restrictions on the persons who can use the swimming pool or gymnasium or the use of these facilities for gain". (This argument is similar to the argument that was rejected by the Court of Appeal in Stebbins although in that case the developer was seeking to avoid the consequences of the Council's notation on the approved plan whereas in the present case the Applicant is seeking to avoid the consequences of what its development applications described as the relevant developments for which consent was being sought.)

Whereas my rejection of the Applicant's principal argument in large measure derives from my rejection of its argument "that reference cannot be had to the development applications", in construing the consents, whether this argument is to be appreciated as an objection to the admissibility in evidence of the relevant development applications (including the accompanying statement of environmental effects) or as a matter of substantive law, I would reject it for the reasons that I have already given in holding that each of the development applications is incorporated by express reference in each of the s 92(1) Notices and that the contents of those development applications may be consulted in order to properly and fully describe and ascertain the developments that were respectively approved by the 1982 and 1997 development consents.

For completeness, I would however say that even if the Applicant were correct in its principal submission (that it is impermissible to refer to the respective development applications to ascertain the true and proper description of the approved developments, with the consequence that the s 92(1) Notices must be construed without reference to the relevant content of the approved development applications), I would nonetheless not uphold the construction of the consents contended for by the Applicant. I should briefly state my reasons.

In the case of the 1982 development consent, the position I think is very clear, that the only relevant permissible purpose of development in terms of the Special Uses "A" Zoning under the Hornsby Planning Scheme Ordinance was "Convent" (which the parties have assumed includes the school) and purposes ordinarily incidental or subsidiary to "Convent".

In these circumstances, it would be appropriate to construe the development consent by applying the principle of construction that the instrument (here the development consent) ought to be construed so as not to exceed the relevant power pursuant to which it was granted. Since the relevant power (the Hornsby Planning Scheme Ordinance) only permitted a development within the Special Uses A zone for the purpose of a "Convent" or a purpose ordinarily incidental or subsidiary to a convent, the consent for the erection of a gymnasium must be construed as a consent for that purpose only ie a gymnasium for the purposes of the convent (school).

The Applicant's proffered construction of the 1982 development consent would far exceed the relevant enabling power and on that account alone must be rejected and the consent must be read down to be within the boundaries of the available power.

In the case of the 1997 development consent, the imposition of Conditions 12, 13, 17 and 18, in my judgment, implicitly limited the consent to use of the approved swimming pool to use by the School for school purposes.

Those conditions are as follows: 12. The hours of operation of the use are to be restricted to 7.00am to 9.00pm during school week days, 8.00am to 6.00pm on weekends during school term and school vacation periods. 13. In order to maintain the amenity of adjoining properties, any after school use of the proposed facilities should be managed by an on site manager, appointed by the school principal. Appropriate policy should be established to control noise generating activities and to minimise adverse noise impact in an appropriate manner. A management plan is to be submitted with the building application. 17. The total number of students is to be restricted to 850. 18. Council liaise with Loreto regarding the undertaking of a Traffic and Parking Study in the locality of the school with the aim of reducing the traffic and parking problems.

The implication arising from the imposition of those conditions is reinforced by the fact (provable by legitimate extrinsic evidence) that the approved development site is the School property upon which the existing school is established.

Yet a further reinforcement of the implication is found in the fact that the s 92(1) Notice states that the classification of the approved swimming pool under Part A3 of the Building Code of Australia is "class 9b" (assembly buildings). The relevant provision of the Building Code of Australia expresses the classification as follows: Class 9b - an assembly building including a trade workshop, laboratory or the like in a primary or secondary school, but excluding any other parts of the building that are of another class D. CONCLUSIONS AND ORDERS

For all the foregoing reasons, the Applicant has not established its entitlement to any of the declaratory relief it has claimed.

The construction of the development consents that I have adopted is that the use of both the approved gymnasium and swimming pool developments is confined to use by the School for school purposes.

Accordingly, I would propose to order the dismissal of the application.

However, since the parties have asked for the opportunity to consider their respective positions after I have determined the proper construction of the 1982 and 1997 development consents, I shall suspend the order dismissing the application for 28 days with liberty to apply on two days' notice, if other relief is sought.

Suspend Order 1 for a period of 28 days with liberty to apply on two days' notice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Loreto Normanhurst Association Inc v Hornsby Shire Council [2002] NSWLEC 45 APPLICANT: Loreto Normanhurst Association Inc PARTIES : RESPONDENT: Hornsby Shire Council FILE NUMBER(S) : 40104 of 2001 CORAM: Bignold J KEY ISSUES: Development Consent :- what are the approved developments - Legitimacy to refer to development applications in construing consents. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 91 and 92 Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111LGERA 446; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; CASES CITED: Ryde Municipal Council v Royal Ryde Homes (1970) 19LGERA 321; Stebbins v Lismore City Council (1988) 64LGRA 132; Winn v Director General of National Parks and Wildlife (2001) NSWCA 17; Woolworths Ltd v Campbells Cash and Carry (1996) 92LGERA 244 DATES OF HEARING: 1 November 2001; 12 December 2001 DATE OF JUDGMENT: 03/27/2002

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